Choctaw Indian Bonds.

DEPARTMENT OF JUSTICE,

April 17, 1872.

SIR: I have the honor to acknowledge the receipt of your letter of the 3d instant, asking my opinion as to whether or not "the Secretary of the Treasury is authorized to allow interest upon bonds that may be issued to the Choctaw Nation of Indians under the last clause of the first section of an act approved March 3, 1871, entitled 'An act making appro. priations for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June 30, 1872, and for other purposes,' (16 Stat., 570,) and the act of March 2, 1861, entitled 'An act making appropriations for the current and contingent expenses of the Indian Department and for fulfilling treaty stipulations with various Indian tribes for the year ending June 30, 1862,'" (12 Stat., 214.)

Reference is made to that portion of the act of 1871 which reads as follows: "And the Secretary of the Treasury is hereby authorized to issue to the Choctaw tribe of Indians, bonds of the United States to the amount of two hundred and fifty thousand dollars, as directed by the act of March 2, 1861, entitled 'An act making appropriations for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes ;" and also to that portion of said act of 1861 which reads as follows: "For payment to the Choctaw Nation or tribe of Indians, on account of their claim under the eleventh and twelfth articles of the treaty with said nation or tribe, made the 22d of June, 1855, the sum of five hundred thousand dollars, two hundred and fifty thousand dollars of which sum shall be paid in money, and for the residue the Secretary of the Treasury shall cause to be issued to the proper authorities of the nation or tribe, on their requisition, bonds of the United States authorized by law at the present session of Congress: Provided, That in the future adjustment of the claims of the Choctaws, under the treaty aforesaid, the said sum shall be charged against the said Indians."

You state that the council of the Choctaw Nation has passed an act, recently, requesting you to issue the bonds

Choctaw Indian Bonds.

specified in said act, and also to pay to the Choctaw Nation the interest on the same from the 2d of March, 1861. Bonds are to be issued under the act of 1871, and, of course, must bear date subsequent to the passage of that act, and it is difficult to see how interest can accrue or be paid upon bonds before their existence. I suppose the demand of the Choctaw Nation to be for interest on the $250,000, to be paid in bonds, from the passage of the act in 1861 until the bonds are issued under the act of 1871, on the ground of the indebtedness of the United States to the Choctaw Nation in that amount during that time.

Whether the Choctaws have an equitable claim for interest on said sum during said time is a question for Congress to decide. To authorize the Secretary of the Treasury to pay such interest, it must appear that the Government has either made some agreement or passed some law providing for its payment. Assuming that the United States agreed to give to the Choctaws bonds for their indebtedness, which would, of course, bear interest, there is no agreement to pay interest upon the sum before the bonds are issued, nor any law directing the Secretary, or appropriating any money, to pay such interest. Interest is in the nature of damages for an unjust refusal to pay a debt that is due. Government, as a general rule, does not pay interest.

Attorney-General Wirt says upon the subject: "Interest is not a thing of course. It is in no case part of the debt, nor is it a necessary consequence of the debt," (1 Opin., 555.)

Attorney-General Black says: "An obligation to pay inter. est is not to be implied against the Government, as it is against a private party, from the mere fact that the principal was detained from the creditor after his right to receive it had accrued," (9 Opin., 39.)

In the case of Todd vs. The United States, (Devereux's Rep., 95,) the Court of Claims says: "This court cannot allow interest upon claims against the United States in the absence of a contract to pay it, even in cases of long delay under vexatious and oppressive circumstances, as this would render necessary the exercise of a vague and unlimited discretion not vested in the court."

According to the act of 1861, these bonds were to be issued

Choctaw Indian Bonds.

upon a requisition therefor by the proper authorities of the nation or tribe; and from the papers accompanying your letter, to which I am referred for information, it appears that no such requisition was made until some time in the year 1870. Whether or not the Secretary of the Treasury had a right to issue the bonds before the act of 1871 is a question about which there are grave doubts, but which it is not necessary to decide.* But it appears that, for a considerable portion of the time from the act of 1861 until the act of 1871, the Secretary had no such power, and that, in the opinion of Congress, the Choctaws were not entitled to either principal or interest, on account of their alliance with the enemies of the Government, (12 Stat., 528; 13 Stat., 563.)

Assuming all that can be claimed, that the United States. became indebted to the Choctaws, in 1861, in the sum of $250,000, and had neglected and refused to make payment until 1870, it does not follow that the Secretary of the Treasury can pay interest upon that sum during that time, for there is no agreement by the Government or law to make such payment. Whatever views the Secretary may entertain of the equities of the parties, he can only pay out money as directed by law.

I am, therefore, of the opinion that the Secretary of the Treasury is not authorized to pay interest upon said sum of $250,000 prior to the date of the bonds issued or to be issued under the act of 1871.

Very respectfully, your obedient servant,

Hon. GEO. S. BOUTWELL,

GEO. H. WILLIAMS.

Secretary of the Treasury.

See an opinion of Mr. Attorney-General Akerman, addressed to the Secretary of the Treasury, under date of December 15, 1870, (13 Opin., 354,) wherein this question is considered in connection with the provisions of a treaty with said tribe of April 28, 1866, under which, Mr. Akerman holds, the Secretary might lawfully issue the bonds, as provided in the act of March 2, 1861.

Rock Island Bridge.

ROCK ISLAND BRIDGE.

The Government may permit the Davenport and Saint Paul Railroad Company to use the bridge across the Mississippi River at Rock Island, upon the payment by that company of one-third of the cost thereof, one-half of which to be paid to the United States and the other half to the Chicago, Rock Island and Pacific Railroad Company, (assuming that the latter company has complied with the requirements of the joint resolution of July 20, 1868.)

DEPARTMENT OF JUSTICE,

April 18, 1872.

SIR: I have the honor to acknowledge the receipt of your letter of the 1st instant, inclosing bill H. R. 1672, granting to the Davenport and Saint Paul Railroad Company the right of way over the bridge across the Mississippi River at Rock Island.

You inquire "whether, in view of the legislation already had by Congress, authorizing the construction of the bridge, and the guarantee given by the Chicago, Rock Island and Pacific Railroad Company to fulfill the conditions imposed by law in regard to the construction of said bridge, sufficient authority is vested in the War Department or in the United States to grant to other railroads than that named the right of way over the Rock Island bridge."

I have to say, in answer, that Mr. Elmore, representing the Chicago, Rock Island and Pacific Railroad Company, and the Hon. Hiram Price, representing the Davenport and Saint Paul Railroad Company, appeared before me, and, in respect to the subject-matter of said inquiry, agreed in effect as follows: That the Government had the right to permit the said Davenport and Saint Paul Railroad Company to cross said bridge upon the payment by the said company of one third of the cost thereof, one-half of which was to be paid to the said Chicago, Rock Island and Pacific Railroad Company, and the other half to the United States.

Assuming that the said Chicago, Rock Island and Pacific Railroad Company has complied with the requirements of the joint resolution of Congress of July 20, 1868, which seems to be conceded, I think that the said agreement of the parties. accords with a correct construction of existing laws. Each

Fort Leavenworth Military Reservation.

company is, of course, to pay one-third of the cost of keeping said bridge in repair.

Doubts seem to exist as to whether the Secretary of War has power to make the proposed arrangement with the Davenport and Saint Paul Railroad Company, as that power is vested by said joint resolution in the "Government," and also as to the payment of the said company's proportion of the cost of said bridge.

I think it proper, therefore, if not absolutely necessary, for Congress to pass an act consenting to the use of said bridge by the said Davenport and Saint Paul Railroad Company, and providing that so much of the money to be paid by said company for the use of said bridge as may become due to the Government shall be paid into the Treasury of the United States.

Very respectfully, &c.

Hon. WM. W. BELKNAP,

Secretary of War.

GEO. H. WILLIAMS.

FORT LEAVENWORTH MILITARY RESERVATION.

Jurisdiction over the lands lying within the limits of the military reservation of Fort Leavenworth passed from the United States to the State of Kansas under the operation of the act of June 29, 1861, chap. 20, admitting that State into the Union; and to restore such jurisdiction to the United States, a cession thereof by the State is necessary.

DEPARTMENT OF JUSTICE,

April 19, 1872.

SIR: I have the honor to acknowledge the receipt of your letter of the 30th ultimo, inclosing papers touching the military reservation of Fort Leavenworth, Kansas, and submitting for my official opinion the following questions:

"1st. Whether under the Constitution the reservation of this land as a site for a military post and public buildings takes it out of the operation of the law of March 3d, 1859, (11 Stat., 430, 431.)

"2d. What action will be required on the part of the Executive or Congress to restore the land comprising this reservation to the exclusive jurisdiction of the United States ?"